www.thornwalker.com/ditch/neff_penrose_3.htm
 
A PDF version of A Penrose Stairway is available here.


A Penrose Stairway: Why the Free Market
and Limited Government Are Incompatible,

by Ronald N. Neff

Table of Contents for A Penrose Stairway

December 17, 2016

 

Chapter Three

Free-Market Defense, Crime, and Procedural Guarantees

 

THE MATTER OF CRIME IN THE STATELESS SOCIETY looms large in Jacob Hornberger’s case for a limited government. Indeed, it looms large in the thinking of most writers who attempt to provide a case for the night-watchman limited government.

Hornberger begins by asking us to consider a society in which there is a government that has enacted only One Law, a law prohibiting murder. This starting point is important to him because it suggests that he has imagined a government that has not violated the non-aggression principle. Since the only legislation prohibits murder, and since murder is an act of aggression, anyone living in this society would surely think of himself as free.

Could not anyone support or at least settle for such a government? The point of the argument is that once we have settled for the government with One Law, why not settle for a government in which all of the laws are objective and just and directed only against aggression and aggressors?

What we have here is a failure of the imagination. Yes, we can postulate the existence of such a state, just as we can postulate the existence of The Emerald City. We can even postulate roads between here and there. But it does not follow that any of those roads can be built.

Again and again we shall see that, in arguments for the desirability of establishing a government, exactly how the thing is to come into existence is simply passed over. It will be like trying to construct one of the Penrose staircases drawn by M.C. Escher in which the stairs ascend and descend in a continuous loop. (See examples of Escher’s Penrose stairways and variants here.) The description is simple enough; but to build one will entangle the builder in impossible contradiction.

How did that One Law get passed? It was passed by a legislature composed, presumably, of elected officials. Some procedure of majority rule was enlisted to determine how to pass such a law, and some procedure of ratification was also in place.

Both the procedure of majority rule (whether simple majority or super majority) and the procedure of ratification represent two laws already existing. Even before we get to the One Law, there were two pre-existing laws. Where did those laws come from?

There is more. Where did the legislators come from? Someone — by some rule — determined how a person might become a participant in the proceedings that would produce the One Law. That determination is at least one other law. Moreover, that law not only names some as legislators but excludes all others from exercising legislative power. That law created a legislative elite.

In short, in order to get the One Law (or any other so-called just law) on the books, there must already exist dozens and dozens — perhaps hundreds and hundreds — of procedures, all with the force of law, allowing some men to pass the One Law and forbidding others to pass it. By the very nature of things, there cannot be only One Law. And whereas the One Law may have been passed by some legislature, the procedures creating the possibility of legislation would most likely be found in some document of higher prestige, perhaps a constitution or “Supreme Law of the Land.” And where did that constitution or Supreme Law come from?

The postulate of the One Law is a metaphysical absurdity.

To make matters worse, note that, of the laws whose pre-existence is necessary for the One Law to exist, not one protects the personal or property rights of the people who are to be governed by the One Law. Our night-watchman limited government, in attempting to pass One Law to protect the people who have consented to it, must pass laws having nothing whatever to do with their natural rights.

Let us ask also who is enforcing that One Law? Is there a law prescribing who may and who may not enforce it? If there exists a government, then, as we shall see, there are almost certainly laws in place identifying the proper enforcers, and naming all others vigilante enforcers who must answer in some way to the final authority enforcing that One Law.

But suppose all the procedures creating the One Law and determining who shall enforce it are just. If each of the procedures is just, and the One Law is passed in accordance with them, and it itself is just, is not the governmental system just?

Here we find ourselves at the heart of all the flaws in all the arguments for the state. It is at this level that we see at last that the One Law argument — and, indeed, every argument for government — fails because it has not kept its eye on the ball. Looking all over the field for new plays, counterarguments, and logical subterfuges, Hornberger and other exponents of the night-watchman limited government have lost sight of the ball.

The ball is legitimate authority.

To pass any law — the One Law or the procedures that have the force of law — there must exist a body holding authority to enact those procedures and excluding others from enacting them. And where will that authority come from? How will it be conjured into existence?

And to repeat, because some men have been given, i.e., “delegated,” the right to pass this law, which right has been withheld from all others, it has given rise to the existence of a special ruling class, a legislative elite; indeed, it is dependent on the existence of a special ruling class. And all before its personnel have held even one debate to pass the One Law.

After postulating the existence of a government with only One Law, or, rather, as Hornberger goes on, a government only with laws that prohibit or deal with violations of the rights of its citizens, we are asked to consider the question of how a person who has violated the One Law (or the others) is to be found guilty. Hornberger’s answer is a celebration of English and American jurisprudence.

There is no guarantee that private agencies, says Hornberger, will apply these procedures or incorporate them into their own functions. And even if they do incorporate and apply them, there is no guarantee that they will continue to incorporate and apply them. He suggests that people may grow tired of “technicalities” used to “coddle criminals” and resort to all sorts of nasty substitutes.

The quest for a night-watchman limited government often reveals itself, as here, as a quest for certainty, and as a quest for guarantees that simply are not possible. It is a quest for epistemological assurance that all will be well, or at least that all will be as well as mortal man can reasonably hope for.

I will not be the first to observe that almost any objection to free-market defense agencies or courts will apply equally well, if not more forcefully, to governments. That is certainly the case here. Despite the fact that the English/American system has been in existence for more than 200 years, we do not see other governments adopting it. Or if they do adopt it, their adoption is often to be found merely on paper and not in practice. We can see also that there are corruptions of the procedures in that system both in the United States and in the other countries dominated by English jurisprudence. No country, no government, can hope to be free of those corruptions. No country, no government, can hope to be free of attempts to abandon those principles.

The guarantees of a night-watchman limited government are only as credible as the people who observe them are. If a vast majority of the populace are virtuous and have a regard for fairness and justice, they will get a system that reflects that regard, within the limits of the one in which they live. But that is true whether there is a government or not. But if it is true, as I am arguing, that the kind of government sought by libertarian exponents of the free market is simply impossible, then no amount of virtue will prevent it from collapsing, to borrow a phrase, “from its inner contradictions.”

It may be arguable that a system of free-market defense agencies would also collapse into a kind of tyranny, but there are three points worth remembering:

First: it is hard to see how the government exponent’s case is advanced by a criticism of free-market defense agencies that says, in effect, that they will begin to act like governments.

Second: unlike the collapse of a limited government, the collapse of defense agencies into criminal tyranny will not be system-wide. It will be limited by the fact that no defense enterprise controls the entire system. In a system of free-market defense agencies, if one agency begins operating with presumptions of guilt, or accepting confessions obtained under torture, or prohibiting accused persons from employing lawyers, the persons who are oppressed by them can call on other agencies for protection. When the night-watchman state begins to fail, its citizens have no one to turn to; not so in a free market with competitive defense agencies.

Third: even a system-wide collapse of a free-market system into criminal tyranny would not be metaphysically certain. If it should happen it would be because there were contingencies at work. In the case of the night-watchman limited government, the failure will be the result of its being riddled with attempts to violate the Law of Contradiction, and will therefore be logically inescapable.

Another way of stating this is that it is possible for a free-market system to “work,” however imperfectly. It is not possible for a night-watchman limited government that does not intrude into the free market even to exist.

Hornberger contends that the federal system of state courts and appellate courts operates as a kind of system of competitive agencies. But that can be the case only if there is no “final arbiter.” And it would be an ironic assurance indeed — to reverse an earlier observation — to argue that if the final arbiter failed to perform its duties, the system of state courts and appellate courts would begin to act like free-market defense agencies.

And should all those state courts and appellate courts become abusive or lawless — as many American libertarians would agree they already have — and if the final arbiter, i.e., the national government, should fail in its duties to overrule them, there would be no one to turn to. Unless — and this is crucial — one were prepared to argue for a world government. I hope it will become clear that any argument for a night-watchman limited government is, in fact, an implicit argument for world government, a position that, in my experience, few libertarians are willing to defend.

Of course, a world government may solve the problem of a national night-watchman government that becomes corrupt or abandons its duty to defend rights, but it will be of no help whatever when the world government collapses from the same contradictions, as it inevitably must. The Law of Contradiction spares no attempts to circumvent it, whether they are local, global, or even galactic.

Let it be allowed that the procedures that make up the jurisprudence of England and America are valid and worthy. Let it even be allowed that, as a matter of historical fact, they were developed within the context of governing states. Several important ideas do not follow from those allowances.

It does not follow that other states do not have valid, worthy, or even superior sets of procedures, though Hornberger states his opinion that the English/American is the best that has been developed so far. This is important because it highlights another problem that appears almost universally among those who write about a night-watchman limited government. The assumption is that their vision is the one that will be adopted. But I think we should not be surprised if, somehow having broken away from the U.S. tyranny and formed its own night-watchman limited government, Louisiana adopted the jurisprudence of the Napoleonic Code, not the Common Law of England.

It does not follow that entities other than states cannot put the specific features of the American/English system into practice.

It does not follow that entities other than states cannot improve on them.

It does not even follow that it was governments that developed them.

This last is important. It requires that we recognize that governments are not entities with minds. They are not thinking entities, they are not judging entities, they are not creative entities. They are institutions in which there are individual persons who work, who think, who discuss, who judge, who reason.

And those persons do not possess, merely in virtue of their employment or association with the government, any wisdom or knowledge or reasoning capabilities superior to those of other men. To quote Roy Childs, “Government does not consist of men who have powers of epistemological elitism; that is, they have no means of knowledge not available to other men.”

But I think there is another consideration even more damaging to Hornberger’s case, and that is that none of the procedures in which he has so much confidence was developed in the context of a night-watchman limited government.

Indeed, they were developed within the context of tyrannies, or in response to tyrannical action. In other words, in accepting them, Hornberger has implicitly agreed that it is not necessary to have a just government in order for them to develop. It is not necessary that there be a limited government in order for them to be discovered, or applied once they are discovered or developed.

And if such creditable procedures can be discovered within the context of a tyranny, such as King John’s of England (a tyranny Hornberger frequently alludes to in his other writings on judicial procedures), surely they can be discovered and effected in the context of free-market defense agencies and courts. And just as they can be overturned or ignored in a free-market setting — a possibility I certainly cannot deny — they can also be overturned or ignored in the context of a government, as Hornberger must surely admit.

This difference is one we have seen before: that a single agency discontinues their use will not imply that all agencies have discontinued them. Once the final arbiter in a limited government — the Supreme Court, perhaps — drops them, they are gone from the entire area it rules.
 

Defense agencies

In dealing with the question of crime, Hornberger turns, naturally enough, to the issue that was raised in Roy Childs’s seminal essay, “Objectivism and the State: An Open Letter to Ayn Rand.” The argument is this: if a state prohibits a free-market agency from providing the defense or judicial services normally associated with government, it has initiated force against an entity which has not committed any act of aggression against anyone else. And in that case, it is no longer a government that does not violate the rights of nonaggressors. If it does not prohibit agencies from providing those services, then it enjoys no status different from theirs, and, in effect, is not a government at all.

Hornberger replies that in a night-watchman limited government devoted to the defense of personal and property rights, there would be no objection to the existence of private security services or of private arbitration services. But in making this argument, he is missing the point; he has lost sight of the ball again.

And, as before, the ball is legitimate authority.

The issue is not whether there will be private defense or arbitration services. The question is whether there will be an entity that has or exercises some privilege which they do not possess. And if there is such an entity, what is it and how does it obtain that privilege, that special status, and by what right does it exercise it?

Hornberger explains that what free-market anarchists are objecting to is that the government will have the final say in disputes. It will not permit private police or judicial businesses to use force or to determine when force may be employed. He agrees with them, and “explains” that the reason is that the state enjoys a monopoly on the use of force.

But that is the very point of contention in the Childs argument. It is the thrust of it. If it is asked by what right does the state and only the state make that determination of when to use force, by what right does the state and only the state act on it, the answer that comes back cannot be, “Because it has the monopoly to do so.” It is certainly Hornberger’s answer. But that answer fails to grasp that the question just is, “By what right, by what moral right, does it possess that monopoly? By what right did it acquire it?”

Hornberger assures us that its having that right is how it protects individual liberty and the free market and maintains peace in society. But all that means is that he considers the existence of government useful. Unless we are to believe that whatever some people consider useful is also moral, the assertion of usefulness is no argument for morality. It will be remembered that the mission statement of Hornberger’s Future of Freedom Foundation is, inter alia, to “provide an uncompromising moral ... case for ... limited government.”

That is not the end of it. Let us allow that there must be a monopoly in the use of force in society. Let us imagine an organization of people and institutions and offices that assert that monopoly. What makes them the proper government? — that is, supposing that enough people are dissatisfied with the way the holder of that monopoly is operating that they wish to operate their own monopoly ... their own monopoly operating in overlapping geographical territories. Which one is the limited government, and how will Hornberger know? Which of the two will be just when it prevents free-market defense agencies from using defensive force? Which of the two will be just when it prevents free-market judicial services from enforcing their findings? Which of the two monopolies has the right to be the monopoly, and by what means can anyone tell which of them it is? Which one of them has authority to exercise monopoly powers?

By what marks can the “just monopoly” be discerned from the “unjust monopoly”? What makes one of them a government and the other a criminal organization?

So, again, it is not enough to say that government has a monopoly on the use of force. One must be able to say which organization is the government. One must be able to tell which one is the real and which one is the imitation. Presumably one of them possesses authority, and the other does not. And what are the marks of its authority?

It would appear, however, that Hornberger wishes to construct a kind of “tu quoque” argument showing that a free-market defense system is inherently incapable of defending justice because the incentives that are inherent to it are in opposition to that end.

His argument is as follows: In a stateless society, the criminals (murderers, robbers, rapists, embezzlers, and so on) will be able to form their own defense agencies and judicial systems to protect them. They have no desire for justice. In the words of an attorney Hornberger quotes, “My clients don’t want justice; they want freedom.”

The same is true, Hornberger holds, for one who is normally law-abiding. If he is justly charged with a crime, he also does not want justice. He wants freedom. And as for one who is mistakenly charged with a crime, even he will very likely opt for freedom, if he has to choose between it and justice. Therefore, the most successful defense agencies and judicial systems in a free market will be the ones that are most successful at getting their clients free.

As I stated before, any argument against free-market defense agencies will almost certainly be applicable to a state system, and this argument is no exception. In the system we have now, the most successful lawyers are the ones who argue most successfully in their clients’ behalf. Their clients do not want justice so much as they want their case (whether criminal, civil, or contractual) to prevail. Hornberger believes that a governmental system is able to surmount that difficulty by the fact that there are various entities in place (judges, juries, prosecutors, public sentiment) that have an interest in justice. It may be that certain procedures — perhaps he would cite the use of an adversarial system — help to enforce the interest in justice, or at least counter the incentives for leniency. But certainly the existence of attorneys specializing in serving organized crime — along the lines of Bendini, Lambert & Locke, in the movie The Firm — testifies to the existence of the very weakness in a night-watchman limited government that Hornberger fears will emerge in a system of free-market defense agencies.

What Hornberger neglects are the incentives of defense agencies, incentives more tangible than that for abstract justice. He has little regard for the free-market anarchist’s reply that defense agencies catering to criminals will soon go out of business, but what he fails to notice is that it is not only accused persons who are the customers of a defense agency. Let us admit that even people mistakenly accused of committing a crime desire freedom more than they desire justice; it does not follow that the rest of the agency’s customers have the same priorities. And any agency or judicial system that is seen to routinely set accused criminals free may soon find the rest of its clients looking at it a little askance. It is as though Hornberger thinks that most of the patrons of a restaurant do not care whether a handful of customers die from the poison in their rhubarb pie, because rhubarb pie is not particularly popular.

After all, if 98 percent of the people in a society are not criminals (a figure Hornberger uses by way of illustration), it follows that 98 percent of the customers of defense agencies do not want them letting criminals run rampant. In other words, while there may be an incentive for a defense agency to serve an accused criminal, that agency also has an incentive to serve those who are not accused.

It would follow that a free-market defense agency/judicial system has an economic incentive both to do its best by someone accused of a crime, and not to be too easy-going about crime.

Defense agencies have another and important incentive, which is related to the interests of the customers of any given defense agency and to the procedures the agency will employ. To begin with an example, no one has a natural right to confront his accusers; that “right,” as we shall see in Part II, is a civil right, and is part of the English/American jurisprudence that Hornberger looks to, to serve the rights of the accused. It exists because the interests of those who are not accused demand that actual perpetrators of crimes be identified. It is not in the interest of anyone that criminals escape detection and that the innocent take their place in the dock. If an agency, either because its procedures are flawed or because the agency is incompetent, routinely condemns the innocent, it follows that the guilty are still free, and its customers are no better off than they would be without it. It is in the interests of the defense agency’s customers that the agency not make mistakes of that sort. If I believe that it is wrong for a person to be tortured to give evidence against himself, it is in part because I believe that such a procedure will not correctly identify a criminal.

Procedures that protect the innocent and more surely identify the guilty are in the interest of the customers. I do not merely want the agency that is supposed to be protecting me to protect a suspect’s rights; I want it to find the real criminal. As much as criminals might prefer to be free when they are charged with having committed a crime, even they — when an injustice has been done to them — do not want the wrong person to be convicted. And if I operate a defense agency that routinely gets that wrong, then I will indeed lose customers, respect, and investors. The “jury” of criminals in the movie M did not want to convict just any convenient person of child molesting; they wanted to find the real child molester and punish him. They understood that to convict the wrong person did not solve their problem (the intense manhunt and police scrutiny to which each of them had become subject), for in that case the real molester would continue to commit his crimes, and they would be no better off than before.

So the private-enterprise defense agency has a genuine incentive — not merely an abstract desire to do right — to be just to the accused and to protect its customers. And even the accused has interests that are not fully captured by the desire to be free.

But what incentive has a government to do its best by both parties? Hornberger has inadvertently given us an answer. It was in a government system — a system of limited government, with a devotion to the procedures Hornberger admires as part of the American/English jurisprudential system — that we first heard of people getting “let off on technicalities,” that we first heard of “coddling criminals.” And what could the ordinary citizen do about it? What can the ordinary citizen do when those who are obviously guilty are released? Absolutely nothing.

Oh, he can vote for strong “law and order” candidates, but they could not, even if successful, reverse the findings of the earlier courts: the American/English jurisprudential system would not permit it. They could not, in most cases, even remove the judges whose judgments and verdicts released the “coddled criminals.”

Would a free-market system be better? I cannot say for sure. What I can say for sure is that if Hornberger is right and the free-market would lack the guarantees he would like to see, it would follow that those guarantees would not be around to protect the continued freedom for released criminals “coddled” by interpretations of the procedural matters. If the virtues of the system Hornberger wishes to see are absent, so too are the flaws that derive from with them. I can also say for sure that businesses have greater incentives to identify flaws in their operations than governments have; that businesses have greater incentives to correct flaws in their operations than governments have; and that businesses have greater incentives to do both quickly than governments have.

No one can say for certain how a system of free-market defense agencies would work, or even that they would all work the same way. The quest for certainty is a doomed quest, and no one can say for sure how any business concern in a free market will operate. What we can know for certain is that the outcome will ultimately be directed by the natural laws of economics and business, not by the arguments of Bendini, Lambert & Locke, which, when successful, are the end of the matter.
 

Foreign competition

By far, the most interesting objection Hornberger has to the free-market system, which, apparently, is also supposed to serve as a justification for the monopoly of force wielded by the state, is the problem of foreign competition.

Hornberger rightly points out that even if Americans get rid of their governments, others probably won’t. There may not be a United States of America, but there will certainly be a North Korea, a Mexico, a Vietnam, an Egypt. And those countries will be free to set up shop in what used to be the United States. He is not talking about military invasion. (In fact, mirabile dictu, the problem of national defense does not form much of Hornberger’s case at all.) Rather, he is talking about the competition free-market defense agencies can expect to experience from foreign governments.

I confess that I find this objection a little surprising, coming as it does from an exponent of open immigration. Under a night-watchman limited government permitting open immigration, what is to prevent North Korea from sending a bunch of its citizens to, say, San Francisco, and organizing them to take over the city government? Or China from sending some of its millions to take over the area west of the Mississippi? Or Mexico from sending enough of its population across the Rio Grande to take over the Southwest?

The takeover I am talking about is electoral, not military. Would we not see Chinese and North Koreans running for public office in a night-watchman limited government? Could not their masses be positioned throughout the country to effect not merely a popular victory, but a victory at the Electoral College? For that matter, what would prevent them from taking over the Electoral College by being legally chosen as Electors and voting in a presidential election as they pleased, no matter what the popular outcome was?

The fact of the matter is that, even with America’s immigration situation as it is today, Hornberger is not afraid that an electoral takeover will occur. I will leave it to him to explain himself. But if a night-watchman limited government has nothing of the sort to fear from its open-immigration policy, still less would free-market defense agencies.

The deeper error in Hornberger’s speculation, however, is his model of defense agencies. To begin with, he supposes that the United States itself has ceased to exist, when, in fact, there is no reason to suppose any such thing. There is no reason that free-market defense agencies could not exist in parts of the geographical United States, even while that government continued to exist.

It is an absurdity that the entire population of the United States could one day decide to disband the government and become a free-market anarchist society, and not merely because it is implausible. It is absurd because it overlooks the existence of time or history. Changes take place over time. They do not occur all at once. And as they occur, a place is made for new entities to come into existence. One does not go to bed with party-line telephones connected by live operators asking “number, please,” and wake up the next morning to discover that the iPhone has popped into existence. There was a process, and it took place over time. There were intellectual and technological developments that as it were prepared the way. Some segments of society were slower to participate in this process than other segments. When cell phones capable of taking photos were first introduced, most Americans were not interested; other developments — perhaps seeing the enthusiasm of Japanese tourists for the gadgets — induced them to change their minds, and a billion-dollar business was born. Only to be replaced by another. And another. We shall return to the role of time when we take up some of Hornberger’s other challenges to free-market anarchism.

For now, let us say only that if we should ever be so fortunate as to see free-market anarchist communities begin to pop up here and there, we can be sure that there will still be a United States. And in that case, I cannot resist adding, the greater danger to those communities will not be that North Korea will set up shop in the area where the defense agencies are to be found, but rather that the U.S. government will take action against the fledgling communities.

Hornberger’s model for free-market defense agencies is precisely that of a government. He imagines that the Chinese government could buy up large tracts of land and establish a chain of settlements across North America populated by 100,000 Chinese and 10,000 military troops to serve as police. He then imagines a confrontation with the Minnesota Defense League.

In other words, he imagines that defense agencies would be organized geographically. I remarked earlier that I do not know where Hornberger gets his ideas of how a free-market anarchism would work. It is clear that he is not getting them from any of the major texts. Perhaps he imagines that it operates only as a system of proprietary communities, such as those described by Spencer Heath MacCallum in The Art of Community. Although that is possible — as I said above, no one can predict how any market will organize itself — there is no reason to suppose that it is the only way, and in any case, he does not use the term “proprietary community” in his description of how he imagines defense agencies would operate.

Moreover, Hornberger — once again failing to imagine how what he speculates could ever come to exist in the first place — has not wondered exactly from whom the Chinese in his example are going to purchase those tracts of land, or why they will be sold. Within the United States as it exists now, there is only one entity capable of selling or otherwise signing over large tracts of land, and it is the government itself. And again, whatever the exponent of limited government imagines can happen in a free-market anarchism is equally possible in a night-watchman limited government. What will prevent the Chinese in his example from buying up all those tracts of land in Hornberger’s limited government with its open-immigration policies and its unregulated free market?

What will prevent China, in his example, with its billion population, from purchasing huge tracts of contiguous land from the free-market owners of that land in a United States with a limited government devoted only to defending personal and property rights, settling it with millions of their own people, and protecting them with its military? How, in its defense of private property, will the night-watchman state prevent private owners from selling contiguous parcels of their land (no doubt, at inflated prices) to Chinese interlopers? And how — given that Hornberger has allowed that there can be private defense agencies within the borders of his limited government — will his night-watchman limited government prevent these Chinese from shipping over tens of thousands of “private security guards”?

Since we have spoken a little bit about guarantees, let us pause here to reflect on the reduced size of the standing army of the non-imperial, limited government that exponents of the night-watchman state advocate. There is no guarantee that it would be any match for those Chinese “private defense agencies.” In a free-market anarchism, all efforts to take over the geographic area defended by non-governmental communities would require that the Chinese “defense agencies” confront and defeat every one of them. In the night-watchman limited government, it would need to defeat only one. And at that, not even the entire one, since a surrender by the central government effectively ends opposition from its scattered forces, highlighting once again my observation that nearly any objection to free-market anarchism is equally applicable to anything the advocates of government offer, and usually portending more disastrous outcomes.

(I interrupt my train of thought here to wonder why it is that Hornberger — who is so sanguine in his writings on immigration about the arrival of millions of Mexicans in America — is so concerned about the Chinese. Does he really think that a parallel “invasion” by Mexicans would be less a catastrophe for liberty and culture than the one he imagines coming from the Chinese? For myself, when I look at the relative crime rates and academic achievement of the two peoples, I almost want to reply to him, “We should be so lucky.”)

The argument, as Hornberger has presented it, is reminiscent of the argument so often advanced by those fearful of the free market who are confident that some business concern or other will lower its prices, defeat all its competitors, drive them out of business, and then take over everything in sight and raise the prices.

I am confident that Hornberger sees that the argument from “predatory pricing” has no merit, and that he sees why it has no merit. (His publication ran an excellent article on the subject by Thomas Woods in its November 2012 issue.) Can he not see that similar considerations will apply here? After all, all he is describing is the attempt on the part of a large business concern (in this case, China) to get a monopoly over particular services in a given area.

But why, it might be asked, if I can be confident that the takeover Hornberger describes would fail in the free-market setting, can he not be confident that it would fail also in the night-watchman limited government setting? He cannot: once a party wins an election, it is in a position to undercut all possible future opposition. All that is required is ruthlessness. All it has to do is win one national election, and it can use its force, its “overwhelming force” (a term of which we shall shortly hear more often) to put an end to all liberty-friendly concerns and organizations. And that “takeover” does not even have to come at the hands of a foreign government that has bought up large plots of land and shipped 10 percent of its population over. It can occur when a political party is abnormally successful. Hornberger and other writers in his publication have often written of the New Deal, when the entire government — including, ultimately, the Supreme Court — was in the hands of a single political party, and how during that period of U.S. history, its Constitution became all but a tool for oppression. They have written also that when that party finally lost control of the state, the evil it had wrought remained in place, to be celebrated by its erstwhile opponents and then expanded by them.

If the New Deal teaches us anything, it is that our liberty is much more vulnerable to ideas from which the charter of a night-watchman limited government cannot protect its citizens than it is to land speculation by the Red Chinese. In the last one hundred years, the worst that the Chinese have done to us is to bring us opium. In the same period, the government to which Americans had entrusted their liberties turned on them like some ravening beast and devoured those liberties in almost a single gulp.

In the case of the free market, there is no analogue to the election, to a New Deal-style takeover. The effort to gain a monopoly through market means never ends and becomes prohibitively expensive, which — in conjunction with market defenses — is why no such effort has ever been successful. While the empiricism of history teaches us that governments can fall easily, there is no empirical evidence that markets can.

In fact, in a certain sense, the possibility that Hornberger suggests already exists. It is called nation-states. The reason that the “anarchism” he postulates runs into problems is that it is not an anarchism at all. It is a system of small nation-states.

And the really small nation-states are at the mercy of the really large nation-states.

If his analysis of “free-market” nation-states is correct, we would expect to see that it is correct on the larger scale, that is, in the real world of political nation-states. And yet, even there, the outcome Hornberger expects does not always obtain. Russia has not yet taken over Ukraine, though it probably can. China has not yet risked war to take over Taiwan. Germany has not yet attempted to reclaim the Sudetenland. And the United States did not overthrow Communist Cuba.

No doubt, all these things are possible and may yet occur. But they demonstrate that even states — even bloodthirsty states, with their history of murder and plunder — sometimes sheathe their swords. Even without a final arbiter. Even without anyone’s having a monopoly on the use of force.
 

The monopoly on the use of force

The odd thing about Hornberger’s defense of the monopoly on the use of force is his particular disparagements of force itself.

In the case of the confrontation between a fictional North Korea Defense League, with 10,000 armed troops, and a fictional Minnesota Defense League, with only a few hundred, it is his conclusion that “the side with the vastly inferior force will very likely let the side with the vastly superior force get its way.”

As a real-world example, he cites a case involving the United States and Nicaragua. Nicaragua had sued the United States in the International Court of Justice and won. But it could not collect its award because the United States simply refused to pay. In other words, his objection to free-market defense agencies seems to be that they will behave like states.

He claims that Nicaragua could never collect from the United States by, say, invading Florida because of overwhelming U.S. military force. But again, we see that Hornberger’s model is the state with its military. Even between states there are other options. Any number of states have nationalized the property of American businesses and gotten away with it, simply because the use of force is often considered prohibitively expensive. And just as the United States has frozen the assets of disfavored governments without risking immediate war, foreign governments could freeze assets of the United States without risking immediate war.

But what I want to highlight is the concern that in such cases, the side with vastly superior force might judge the use of force to be worth the anticipated cost. And Hornberger finds such an outcome objectionable.

However, when there is a limited government, after a defendant has exhausted his appeal to the appellate courts, Hornberger writes,

[There] isn’t going to be one armed force facing another armed force. There is going to be one final judgment. If that judgment declares that the defendant is guilty and must serve time, he will have to submit to the overwhelming force of the government. If he resists, he will encounter the overwhelming power of the state. [Emphases mine.]

Similarly, in civil law, “If the losing party resists with violence, the state will put him down with vastly superior force.”

Why the use of “vastly superior” or “overwhelming” force should be acceptable when used by government, but not when used by free-market defense agencies is by no means clear. It is as though Hornberger finds it acceptable that force prevails when it is used or threatened against one who cannot defend himself, but not when used by rogue free-market defense agencies against others who can defend themselves.

Hornberger confesses that in a limited government “a trial doesn’t guarantee that a just verdict is going to always be reached, but at least it guarantees people a process by which they can present their case and have it considered by a jury or judge.”

But the same can be said of any system of law and courts. Even in North Korea, someone accused of a crime has the assurance that his case will be considered by a judge.

Perhaps Socrates can say, “My case was tried and I lost, and it would be unjust of me to try to escape the penalty prescribed by the court.” I suspect that few prisoners — even among those convicted by a free-market system of courts — would find solace in such a consideration. Still fewer would find solace in recognizing that their attempt to elude punishment will be met by the “superior force” of a final arbiter.

In an example of the importance of a final arbiter, Hornberger cites a case from his time as an attorney. A jeweler had refused to repay a loan to Hornberger’s client, the lending bank. Hornberger disparages the free-market anarchist’s argument that people will not violate their contracts because they will be concerned about their reputation and will want other people to continue to deal with them. He says that evidently the jewelry-store owner wasn’t concerned about such things, and that his customers probably weren’t either.

In that observation, Hornberger commits an error we have seen before in his essay: he looks only at the interests of one or two parties, and fails to consider the wider context. The jeweler and his customers may not have been concerned about his reputation, but we may be sure that lots of bankers or investors, and perhaps suppliers, would be. Any such cavalier attitude about a reputation will suffer market consequences. No doubt there will be people in any market who will hold their reputations cheaply. The existence of a state will not prevent that. It certainly did not in the case Hornberger cites.

What he finds so beneficial to society in this example is that there will be no wars between competing courts. There will be the “overwhelming power of the state” to bring the matter to a conclusion. What makes this “power” so necessary, according to Hornberger, is the fact that it is not always the case that when there are disputes people will find a way to “work things out.” It is his contention that “people will work things out” is the reply that free-market anarchists make when asked how disputes can be resolved without a final arbiter. I must say here that in my reading of libertarian anarchist literature, I have not found this answer given by anyone. Certainly it is not the answer that the Tannehills or the Perkinses give in their books. One would think that a serious attempt to reply to free-market anarchists would include a reply to the systems proposed or described in such works. Hornberger says he has engaged in debates on the subject and organized debates on it; surely those works have come to his attention.

Still examining the case of the jeweler who would not pay his debts, Hornberger explains that it would not be the bank that would use force against him to collect the debt. Rather, it would be the government.

One might first ask why a bank may not use force itself to recover what is owed to it. Note that the question is not why did the bank not use force. The answer to that question may well be that it lacked the skill or resources. The question, rather, is why may it not use force to recover what was owed to it. In asking that question, we are once again looking at the argument of Roy Childs. Hornberger tells us that it will be the government that uses force to collect the debt. And why may the government use force in this case? One must suppose that Hornberger’s answer has something to do with a remark he made at the beginning of his argument, when he said that in a society the 98 percent of a population who are not criminals will decide to “delegate” their right of self-defense to a “competent third party.”

Quite apart from the issue of the coherence of the concept of delegation, fully treated and discredited by Lysander Spooner, another writer whose name Hornberger must have heard at some point, one wonders immediately, what necessitates that the 98 percent agree on a single “competent third party”?

If delegation alone is sufficient to permit a third party to use force, it would seem that there can be no objection whatever to there being a number of such “third parties” in any given society, none of them with a geographical monopoly, all of them with overlapping customer bases, each of them a check on the others, each of them eager to satisfy their principals concerning the probity and success with which they will act.

It is clear from his examples and arguments, however, that Hornberger does not really believe in the right of delegation, but only in a muscular, irrevocable, but imaginary, kind of delegation. For once some group have (notionally) delegated the right to their self-defense, it would seem that no one will be allowed to re-visit that issue. We are all bound by the decision of others who supposedly delegated their right to self-defense to yet others. We are not told who any of those people were, or even when the event occurred. And we surely are not told why it has any moral claim on our actions or decisions. But somehow their decisions are ours. One is reminded of the joke, “Do the Soviet people drink champagne?” Answer: “Yes, through their elected officials.”

In the market, when a customer becomes dissatisfied with the services he is receiving, he is free at once to make a change. He does not have to wait for others to agree with him. He simply stops dealing with one merchant and goes to another. He drinks his own champagne.

In the state, there is no such right, or rather, there is no such recognized right, and certainly no such protected right. When one becomes dissatisfied with the agency to which his right of self-defense has supposedly been delegated, he, alone or with others, may petition for a change, a petition any government one can imagine would be free to ignore. To compel the change, he must persuade a large number of his fellows to desire the change, and even then they must all wait for the next election. Even if successful in that undertaking, they must wait for their new rulers first to take office and then to act in a manner agreeable to them. And then they must wait for whatever new laws are passed to take effect. As in Gian Carlo Menotti’s opera The Consul, this is what even the night-watchman limited government ultimately gives us: “that men withhold the world from men.” And the occupation of would-be reformers, like that of Magda Sorel, becomes “Waiting. Waiting. Waiting. Waiting. Waiting. Waiting. Waiting.”

Finally, in this matter of the monopoly on the use of force, I note a certain parochialism in virtually all arguments in favor of a night-watchman limited government. It reveals itself first in the failure to call for a world government, and it reveals itself secondly in the assumption that the United States must be our model. That is, it is not just that there is a monopoly on the use of force; rather it is that there is only the same monopoly we already have. We are not even offered a different monopoly.

I have already noted that Hornberger regards the jurisprudential system of America/England to be the best in the world, with no consideration given to improvement. To be sure, he allows that improvement is possible, but he suggests no way that it may come, and if the past is a guide, we may be sure it will come slowly if at all. One may be forgiven for failing to name a single improvement the state has put forth since the Miranda ruling. And one may be forgiven for doubting that Miranda represents an improvement.

What the absence of a one-world government demonstrates — where crime is concerned — is that most of the world functions fairly well with quite different forms of jurisprudence. Do the countries of Western Europe release more criminals? Do they imprison more innocent men? In precisely what way is the Napoleonic Code defective? Would not the Scottish verdict “Not proved” be a welcome addition to American jurisprudence? And finally, why is it, if New York jurors may return a “Not proved” verdict, that San Francisco must also have it? Why must the procedures be uniform throughout a geographical area?

That the nation-state is virtually the only form in which Hornberger is able to imagine a system of justice is further suggested when he prepares to make his argument concerning foreign competition. He writes, “Under anarchy ... there would be no more United States of America.” Why not? He assumes that there will still be a North Korea; why does he assume that the entire United States will become an anarchist society all at one time? More important, why assume that the entire United States will become the same kind of anarchist society at the same time?

He is not alone in his parochialism. Nearly all attempts to describe a free-market-friendly limited government are mere attempts to improve on the U.S. Constitution, with little imagination given to alternative structures. One never encounters a limited monarchy modeled on Renaissance Florence. Or a senatorial system modeled on that of Republican Rome. By contrast, consider the suggestions to be found in Robert A. Heinlein’s science-fiction novel The Moon Is a Harsh Mistress:

But if representative government turns out to be your intention there still may be ways to achieve it better than the territorial district.... Suppose instead of election a man were qualified for office by petition signed by four thousand citizens. He would then represent those four thousand affirmatively, with no disgruntled minority, for what would have been a minority in a territorial constituency would all be free to start other petitions or join in them. All would then be represented by men of their choice. Or a man with eight thousand supporters might have two votes in this body. Difficulties, objections, practical points to be worked out — many of them! But you could work them out ... and thereby avoid the chronic sickness of representative government, the disgruntled minority which feels — correctly! — that it has been disenfranchised.

But, whatever you do, do not let the past be a straitjacket!

I note one proposal to make this Congress a two-house body. Excellent — the more impediments to legislation the better. But, instead of following tradition, I suggest one house legislators, another whose single duty is to repeal laws. Let legislators pass laws only with a two-thirds majority ... while the repealers are able to cancel any law through a mere one-third minority. Preposterous? Think about it. If a bill is so poor that it cannot command two-thirds of your consents, is it not likely that it would make a poor law? And if a law is disliked by as many as one-third is it not likely that you would be better off without it? [pp. 301-302, Tom Dabney Associates edition]

I would not have the reader suppose that Hornberger’s criticism of defense agencies is uniquely flawed. Rather, it features the errors that one will find in virtually all such criticisms: harboring utopian expectations for the night-watchman limited government while harboring dystopian suspicions of the free market; searching for guarantees and certainty that cannot be had; imputing epistemological powers to legislative elites, powers that others lack; failing to imagine political systems dissimilar to that of the United States; failing to see that certain arguments, if valid, imply a logical commitment to the creation of a world government; failing to see that the flaws to be found in free-market defense agencies, where they are genuine, exist also in the night-watchman limited government, and with greater damage to society; imagining a system with no idea of how it could be created in the first place; and never noticing the simple metaphysical contradictions that make creating it impossible by the very nature of the thing itself.
 

December 17, 2016


 

Chapter Four: Minimizing the State
 

© 2016 Ronald N. Neff. All rights reserved.
Published in 2016 at The Last Ditch by Croatoan Books, a division of WTM Enterprises.


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